TMI Blog2017 (11) TMI 1819X X X X Extracts X X X X X X X X Extracts X X X X ..... also find that this ground is neither raised before the Ld.AO nor the CIT(A) on the earlier occasions. Therefore we do not find any merit in this ground raised by the assessee. Accordingly this ground raised by the assessee is also devoid of merits. - I.T.A.No.245/Mds/2017, C.O. No. 30/Mds/2017 (Assessment Year : 2008-09) - - - Dated:- 20-11-2017 - Shri N.R.S. Ganesan And Shri A. Mohan Alankamony, JJ. Revenue by : Smt. S. Vijayaprabha, JCIT Assessee by : Shri T. Banusekar, CA ORDER A. Mohan Alankamony, The appeal by the Revenue is directed against the order passed by the learned Commissioner of Income Tax (Appeals)-4, Chennai dated 24.10.2016 in ITA No.27/2014-15/A.Y. 2008- 09/CIT(A)-4 for the assessment year 2008-09 passed U/s.250(6) r.w.s. 143(3) 147 of the Act. The assessee has also raised cross objection against the same order of the Ld.CIT(A) supra, on the reopening of the assessment. 2. The Revenue has raised several grounds in its appeal; however the crux of the issue is that the Ld.CIT(A) has erred in allowing the deduction U/s. 80IB(10) of the Act, amounting to ₹ 4,99,11,555/- following th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; being subdivision of plot no. 486/1. Therefore, at no time did the assessee consider each plot as a separate project but the entire development was considered as a single project and developed as such. 34. The Development Control Rules for Chennai Metropolitan Area regulates the construction within Chennai Metropolitan Area. The rules specify the minimum width of the road that abuts the site of construction at 10 meters where the site was intended to comprise of a residential building with more than four dwelling units. 35. The project of the assessee was on an area of more than one acre and the assessee intended to construct at least 50 to 60 dwelling units on that area. If the assessee had applied for approval as a single project, the approach road had to be a minimum of 10 meters wide, i.e. at least 32 feet (1 metre = 3.28084 feet). However the approach road for the assessee's project was only 20 feet at its widest. Further these rules were particularly applicable in the case of special buildings. The meaning of special buildings as defined by the Development Control Rules is: -A residential or commercial building with more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive buildings on a project - A, B, C, D and E but did not claim deduction for A to D since the approval was granted prior to 1.10.1998. Approval for E was obtained on 11.10.2002. Revenue denied claim of deduction since E was a continuation of A to D and the project had commenced prior to 1.10.1998. Moreover the area of plot for E was less than one acre and therefore the conditions of the section had not been met both on approval and size of plot. The High Court held in favour of the assessee on the ground that the mandate of the law was not that the plot should be a vacant area of one acre. Even if there were other housing projects on the land but the entire plot of land was at least one acre, the deduction was available even if the particular construction for which deduction was claimed was not built of the entire one acre of land. Applying this decision to the facts of the assessee's case, even if it is assumed that each plot B to 0 was a separate project, the fact that all the projects were constructed on the total land area of more than one acre should be considered and deduction should be allowed to the assessee. 40.A similar view has been taken in the assessee&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subsequent years for breach of certain conditions. Once the relief was confirmed for earlier years, the Income tax Officer could not withhold the relief for subsequent years. In the assessee's case also this would hold good and since the deduction has been confirmed by the Hon'ble Madras High Court for the Assessment year 2007-08, it is submitted that the deduction cannot be disturbed in the year under appeal. Similar view has been taken in the case of S.B Industries v ITO in ITA No.151 1568/Mds/07 dated 27.08.2007 and in the case of DyCIT v Kishori Lal Agarwal [2014] 42 taxmann.com 37 (Lucknow- Trib). 45. The judgement of the Hon'ble ITAT Chennai in the case of Prime Developer vs ITO in ITA No.933/Mds/2013-AY 2009- 10, dated 23.09.2015, as relied on by the AO in the Remand Report, to substantiate the finding that the appellant was engaged in the construction work as a contractor and not as a Developer, cannot be applied to the present case of the appellant when the relevant issues has already been decided in her favour by the Hon'ble High Court. 46. Therefore, keeping in view the entirety of the facts and the circumstances of the case and al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
